Kagan Supreme Court Confirmation Hearings to Begin Monday

June 27, 2010

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Kagan separated herself from some of those memos when she testified before senators in February 2009, after Obama nominated her for the post of solicitor general, the government's top lawyer before the court.

In testimony that offered senators a preview of her forceful but self-deprecating style, Kagan said, "You know, I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views. ... And he was asking us, in the context of those (cases), to channel him."

Pressing the Nominee

The 19-member Senate Judiciary Committee that will vet Kagan is led by Sen. Patrick Leahy, D-Vt., who also presided last summer when Obama chose Sonia Sotomayor to replace retiring Justice David Souter.

Leahy has praised Obama's choice of Kagan, including for offering the nation, if she is confirmed, "a new high watermark of three women serving as justices" among the nine.

Leahy has acknowledged how tough it is to elicit substantive answers from nominees and said his experience with nominees, dating to his vote for Stevens in 1975, is that they have been less forthcoming over the years.

Invoking Kagan's earlier scathing comments in a University of Chicago law review about the confirmation process, Sen. Chuck Grassley, an Iowa Republican, has said he will press Kagan to be "as forthcoming as she argued ... nominees should be." Grassley said he was getting calls from people in Iowa "both for and against her."

One of Kagan's most unequivocal defenders has been committee member Sen. Amy Klobuchar, D-Minn. She recently reminded senators of the solicitor general's arguments in defense of a campaign finance regulation intended to restrict the influence of corporations in political elections. The justices rejected the regulation in the 5-4 case of Citizens United v. Federal Election Commission, a decision that Obama immediately attacked in his State of the Union Address in January.

In the ruling that continues to reverberate legally and politically, the court majority said corporations and labor unions have a First Amendment right to use general treasury funds to support candidates.

"It was Elena Kagan who was willing to stand there as solicitor general and basically say corporations aren't people; people are people," Klobuchar said on the Senate floor last week.

Among Republicans, Sessions has been toughest in early criticism of Kagan, calling her a liberal who would bring the "president's agenda" to the high court. He also has provided the strongest critique of her actions in the military recruiting controversy.

Kagan restricted the U.S. military's recruiting at Harvard after a U.S. appeals court in 2004 struck down a federal ban on funds to universities that denied recruiters access because of the military's policy against openly gay servicemembers. Yet, while she kept the military out of the office of career services — as longstanding Harvard policy required for discriminatory employers — she allowed military recruiters to use other campus space.

When the constitutionality of the federal funding ban was on appeal to the Supreme Court in 2005, Kagan joined other law school professors in urging the justices not to revive it. The Supreme Court instead upheld the law, unanimously.

"She kicked the military out of the campus recruitment office as our troops at that very moment risked their lives in two wars overseas," Sessions said.